Liability, or insurance, for WA volunteer bushfire firefighters

I was wondering if you can help clarify if volunteer bushfire brigade members are insured while undertaking controlled burns for land owners on private property.

It has long been my understanding that this is not a “Normal brigade activity” and therefore not covered by Section 37, bushfires Act 1954 unless it’s duly authorised by the local government.

35A. Terms used

normal brigade activities means the following activities when carried out by a volunteer fire fighter —

(a) the prevention, control or extinguishment of bushfires;…

(c) any bushfire prevention activity including the burning, ploughing or clearing of fire-breaks or any other operation, including but without being limited to, the inspection of fire-breaks or other works and the survey of areas for the purpose of detecting fire or ascertaining the need for precautions against the outbreak of fire, but not including the activities of an owner or occupier providing a fire-break or fire prevention works on his own property in order to comply with a notice given under section 33(1) or a local law made under section 33(5a);

(h) attending an incident where the skills of a volunteer fire fighter or the operation of fire fighting equipment may reduce or remove a perceived threat to life or property; …

The first thing to understand is that insurance is a gamble between the insured and the insurer. For a payment of a premium the insured effectively bets with the insurer that an event will happen. For example when you pay a premium to ensure your car you are betting with the insurance company that you are going to crash that car that year. If you do crash the car you “win” and the insurance company has to meet your legal liability to cover damage to any other vehicle and repair your vehicle. If you don’t crash the car, the insurance company “wins” because they get to keep your premium. The insurance company wins more than it loses and so makes a profit.

The point of that story is that the relevant person is the “insured” who enters into a contract with the insurer to transfer their risk. What that means is that the presence or absence of insurance does not determine liability. In this context that means if the bushfire brigade or the council that operates it is liable for the negligence of a firefighter they are liable whether or not they have insurance. If they have insurance and the insurance company meets the liability, if they do not then the liability must be met from general revenue. It also means that it is the risk that the insured faces that is the subject of the insurance.

The question for a firefighter then, is not “are we insured?” but “who will be liable?”

Undertaking a controlled burn on private property could well fall within the definition of a “normal brigade activity”. Such an activity may be for the “prevention” of a bushfire (s 35A (a)), provides training for volunteers (s 35A (d)) and may “may reduce or remove a perceived threat to life or property” that would exist if the firefighters were not there. In particular s 35A(c) provides for hazard reduction work. It should be noted that it does not include work on private property where that work is being undertaken to comply with a notice given under section 33(1).

Section 33(1) provides that a local government may serve a notice on a landowner requiring him or her to take fire prevention measures. Where the landowner does not meet the requirements of the notice the local bushfire control officer may step in to do what has to be done and then bill the landowner for the expenses incurred. The definition of “normal brigade activities” only excludes action taken to comply with that notice. Action taken to reduce bushfire hazard where no notice is been received is a “normal brigade activity” and is not excluded by s 35A(c). Action taken where a notice has been received and where the appropriate steps have been followed is specifically authorised by s 33(4). Where action is required to comply with a local law, then again the local government may take steps to do what needs to be done and then bill the landowner (s 33(5b)).

Finally s 33(6) says:

A local government may, at the request of the owner or occupier of land within its district, carry out on the land, at the expense of the owner or occupier, any works for the removal or abatement of a fire danger…

The local government may use its resources, which include the bushfire brigade, to complete that work. Presumably most “controlled burns for landowners on private property” are conducted pursuant to this section and the local government charges for the use of fire brigade resources. What follows is that if the bushfire brigade is conducting these activities with appropriate authorisation then the members are clearly performing their duties as a volunteer firefighters. If they are conducting operations that are authorised by s 33 they are clearly representing the local government authority.

Even if firefighting is not authorised under s 33 it may be a “normal brigade activity” within the meaning of s 35A. If a landowner approached the bushfire brigade and asked them to come and help may agree to because they thought it was a useful training process that the landowner has asked them not as individuals but as members of the bushfire brigade and they are clearly turning out as part of that brigade.

The members might be on a “frolic of their own” if for example, a landowner contacted their neighbour, who happened to be the brigade captain, and asked if he could come and help with the burn. If the brigade captain said “sure and I’ll ask a couple of mates and will borrow the fire appliance” then it may be that that brigade captain is acting in a personal capacity. Whether the firefighters know that or not would depend on what they are told. In that case it would be arguable that any liability would fall to the landowner on his behalf the fire prevention work is being done.

To return to the question asked which was could I “help clarify if volunteer bushfire brigade members are insured while undertaking controlled burns for land owners on private property”?

When the firefighters are performing a function that is a normal brigade activity within the meaning of s 35A or authorised under s 33 then clearly they are acting as the brigade. If they were somehow negligent and the fire damaged either the land owner’s property or a neighbouring property or injured someone, then any civil liability would attach to the local government authority that owns the brigade. The firefighters would not be liable because they are not acting in their own interest but as part of the local government’s brigade. Is not a question of insurance: if the local government has insurance in the insurance company will meet the liability, if they do not have insurance that they will need to meet the liability from their general revenue.

It is my view that in most cases conducting a hazard reduction burn on private property will be authorised under s 33 (either subsection (4), (5b) or (6)) and brigade members who are part of the team are clearly acting as a local government resource and should there be any liability it will fall to the local government not the firefighters. The question of insurance is not relevant.

NOTE: I have not attempted to discuss whether there would be liability, what constitutes negligence or any defences that might be available under the legislation because that was not the issue in the question. My conclusion only applies if there is liability without entering to into the debate of if and when liability might be established.

As a retired insurance guy, I am a little disappointed that you liken insurance to gambling, even though I expect it was done for the sake of simplicity. Everyone should appreciate that the objective of gambling is to make a profit and whether it be cards, dice or a horse race, there WILL be a result. Contrast with insurance which, inter alia, has the objective of replacing hard earned assets that MAY be destroyed by an insured event.

Is Rylands v Fletcher definitely dead by virtue of the High Court decision? Pity really as it imposes a huge (and perhaps costly) burden for the proof of negligence. To me, the imposition of a strict liability was not such a bad idea.